License to Kill

For Capital Punishment: Crime and the Morality of the Death Penalty

by Walter Berns

Basic Books, 214 pp., $10.95

The last execution in the United States was in Utah in January 1977, when Gary Gilmore played his part in the death pageant contrived to bring about his suicide. Before Gilmore there had been no execution since 1967, when Luis J. Monge was put to death in Colorado. But these wild western scenes may soon be reenacted in the South and other regions, for the Supreme Court has opened wide the door to capital punishment. John Spenkelink, whose death warrant has been signed by the Governor of Florida, faces the electric chair at this writing—May 24—and perhaps forty murderers, who have substantially exhausted possibilities of legal relief, may be executed this year.

Walter Berns’s book arguing for the death penalty is, if nothing else, timely. Today nearly 500 prisoners wait for death in more than twenty states, with over 300 of them concentrated in Florida, Georgia, and Texas. Thirty-five states have some kind of death penalty law, and Mr. Berns will be joined by many in his hopes that these laws will from time to time be applied.

This situation was hard to foresee in 1972 when the Supreme Court in Furman v. Georgia1 struck down a capital statute in a way that arguably invalidated every capital punishment law in the United States. While there was no clear line of majority reasoning in Furman, the case at least held that unchecked discretion to impose the death penalty results in arbitrary and capricious sentences that violate the “cruel and unusual punishments” clause of the Eighth Amendment. To some observers it seemed reasonable to believe that executions might be a thing of the past.

Instead, legislative devotees of death promptly began to draft bills that might meet the constitutional objections of Furman. These revised laws contained specifications of especially vile murders or outrageous circumstances surrounding a murder that would justify the death sentence. Murder during the rape of a child is a typical example of such specifications. Statutes of this kind from five southern states were scrutinized by the Supreme Court in a group of appeals in 1976. North Carolina and Louisiana, the Court ruled, had been overly enthusiastic in their draconic response to Furman. To cure the vice of unguided discretion these states had provided for mandatory capital punishment for a range of first-degree murders, perhaps on the theory that executing everybody would demonstrate a certain impartiality. But the Court struck down these statutes, holding that mandatory death sentences are intolerably harsh in the light of the evolved conception of cruel and unusual punishments.

Georgia, Florida, and Texas, whose new laws permit mercy where there are mitigating circumstances, had better luck in winning approval for their statutes. In cases from these states the Court rejected arguments that the death penalty was in all circumstances unconstitutional. While the Court agreed that the understanding of what is cruel and unusual changes with a refining of moral sensibility, it found that recent public expressions of moral feeling do not clearly condemn capital…

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